When a command recommends that an enlisted servicemember be involuntarily discharged based on performance, misconduct, or mental or physical ability, the matter is evaluated by an administrative separation board, also known as a “Chapter Board”. A separation board offers the servicemember the opportunity to fight for retention in the military.
MJA has successfully defended servicemembers from every branch of the military facing administrative separation. If you have been notified of an administrative separation hearing / chapter board and want to fight for your career, contact us today for your free consultation.
Servicemembers facing involuntary administrative separation are entitled to a separation/chapter board when they have more than 6 years of active duty or face the possibility of receiving an Other than Honorable (OTH) characterization of service.
Servicemembers with less than 6 years of active-duty service do not rate a board hearing and can be separated via “notification procedures” with an Honorable or General (Under Honorable Conditions) discharge.
Each branch has its own regulations governing administrative separation processing. The most common regulations governing the separation of enlisted servicemembers include:
- Air Force – AFI 36-3208 (Administrative Separation of Airmen)
- Army – AR 635-200 (Active Duty Enlisted Administrative Separations)
- Coast Guard – COMDTINST M1000.4 (Military Separations)
- Marine Corps – MCO 1900.16 (MARCORSEPMAN)
- Navy – NAVPERS 15560D MILPERSMAN
These regulations typically require that a servicemember facing an administrative separation board be advised of:
- The specification allegations on which the proposed action is based;
- The specific provisions authorizing separation;
- Whether the proposed separation could result in discharge, release from active duty to a Reserve Component, or release from custody and control of the military;
- The least favorable characterization of service he/she could receive; and
- The type of discharge and character of service recommended by the initiating commander and that intermediate commanders may recommend a less favorable type of discharge and characterization of service than that recommended by the initiating commander.
The separation authority is not bound by the recommendations of the initiating or intermediate commanders. The separation authority may generally not, however, issue a type of discharge or characterization of service less favorable than that recommended by the separation board.
Servicemembers facing a separation board hearing are entitled to numerous rights, including the right to:
- Consult with military or civilian counsel;
- Obtain copies of documents that will be sent to the separation authority supporting the proposed separation;
- Have a hearing before an administrative separation board;
- Present written statements instead of board proceedings;
- Request appointment of a military counsel for representation;
- Retain civilian counsel at no expense to the Government; and to
- Waive the above rights in writing. This includes the right to submit a conditional waiver of the right to have a case heard before an administrative separation board.
A conditional waiver may be submitted when a servicemember wants to waive his/her right to a hearing before an administrative separation board contingent upon receiving a favorable characterization of service.
For example, a servicemember who is facing a potential discharge under other than honorable (OTH) conditions could elect to waive his/her separation board contingent upon receiving an honorable discharge. The separation authority may approve or disapprove a conditional waiver.
SEPARATION BOARD HEARING
Separation boards are typically comprised of at least three members including both officers and enlisted personnel. These members must be unbiased and senior in rank to the servicemember.
Servicemembers typically having the following rights at a hearing, which may be exercised by them or their attorney:
- To appear in person, with or without counsel;
- To submit any written evidence to the board for consideration;
- To request the attendance of witnesses;
- To question any witness who appears before the board;
- The challenge any voting member of the board for cause; and
- To present argument before the board closes the case for deliberation on findings and recommendations.
Servicemembers are not required to testify at the board hearing and may choose to remain silent, given a sworn statement subject to cross examination, or give an unsworn statement.
BOARD FINDINGS AND RECOMMENDATIONS
After hearing all the evidence, the board will determine whether each allegation in the notice of separation is supported by a preponderance of the evidence. If the basis is satisfied, the board must then determine whether the servicemember should be separated or retained in the military. If separated, the board must determine the appropriate characterization of service.
Characterization of service will be based upon the quality of a servicemember’s service, including the reason for separation.
An Honorable discharge is appropriate when the servicemember generally has met the standards of acceptable conduct and performance of duty for military personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.
A General (under honorable conditions) discharge is appropriate when a servicemember’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.
An Other-than-Honorable (OTH) discharge may be issued for when a servicemember’s conduct constitutes a “significant departure” from the conduct expected from a military member.
If a board recommends separation, it may also recommend that the separation be suspended. A recommendation for suspension is not binding on the separation authority.
SEPARATION AUTHORITY ACTION
After the board is complete, the case goes to the separation authority for review and action. The separation authority is the official authorized under the applicable regulations to take final action on specific types of separations.
The separation authority’s action will depend on the board’s findings and recommendations. For example, when a board recommends separation for misconduct, the separation authority may direct separation of the servicemember or disapprove the recommendation.
While a separation authority can disapprove a recommendation for separation and direct retention a servicemember, separation authorities are not permitted to direct discharge if a board recommends retention. Neither can a separation authority issue a discharge characterization of less favorable character than that recommended by the board.
APPEALING AN UNJUST SEPARATION HEARING
Service members who believe they were improperly discharged from the military or received an unjust characterization may file an appeal to the appropriate Board for Correction of Military Records or Discharge Review Board. These boards have the authority to correct errors or injustices relating to a discharge or to upgrade a characterization of service, among other powers.
CONTACT MJA TODAY
MJA has successfully helped servicemembers fight unjust separation actions. If you have been notified of administrative separation and want to fight for your career, contact us today for your free consultation.
- Administrative Separations Part I: Fighting Notification Procedures
- Administrative Separations Part III: Fighting Officer Separations
The post Administrative Separations Part II: Fighting a Separation Board appeared first on Military Justice Attorneys.